Torture of a Person Knowingly in a Helpless State or in Material or Other Dependence on the Perpetrator

1. General Criminal Law Characterisation

Subparagraph 1) of Part 2 of Article 110 of the Criminal Code of the Republic of Kazakhstan provides for an aggravated form of torture where the victim is:

1. a person who is knowingly a minor;
2. a person who is knowingly in a helpless state, as known to the perpetrator;
3. a person who is knowingly materially dependent on the perpetrator;
4. a person who is knowingly otherwise dependent on the perpetrator;
5. an abducted person;
6. a person taken hostage.

The current version of Article 110 of the Criminal Code of the Republic of Kazakhstan provides for imprisonment for a term of four to seven years under Part 2. Thus, the aggravated offence differs substantially in terms of criminal-law severity from the offence under Part 1 of Article 110. (Law and Legal Practice)

Provision: Article 110 of the Criminal Code of the Republic of Kazakhstan — “Torture”

This commentary examines specifically the first group of elements — a helpless state, material dependence or other dependence.

At the same time, it is necessary to strictly distinguish between:

• the objective existence of the victim's dependence or helplessness;
• the perpetrator's awareness of such a state;
• the perpetrator's use of such a state in the context of committing torture;
• the presence of all the elements of the basic offence of torture.

The mere fact of kinship, cohabitation, marriage, a financial relationship, the victim's presence in a hospital or the existence of a physical disability does not automatically mean that the aggravating element is present.

2. Direct Object of the Crime

The direct object of the crime is the social relations ensuring:

• the physical inviolability of a person;
• psychological inviolability;
• health;
• human dignity;
• freedom from cruel treatment;
• a person's ability to independently exercise control over their physical and psychological sphere.

In the aggravated offence, additional protection is afforded to a person who is objectively in a position of increased vulnerability in relation to the perpetrator.

This is precisely why the legislature links increased liability not merely to the fact of causing physical or psychological suffering, but to the circumstance that the victim is in a position that makes effective resistance or independent protection of their rights difficult or impossible.

This demonstrates the increased public danger of the offence under consideration.

3. Constitutional Basis of the Criminal Law Prohibition

The constitutional basis for protecting the victim includes, first and foremost:

• human dignity;
• the right to life;
• the right to personal liberty;
• personal inviolability;
• judicial protection;
• the prohibition of torture and cruel or degrading treatment;
• the presumption of innocence;
• the right to qualified legal assistance.

At the same time, criminal procedural protection must be ensured while simultaneously respecting the rights of the person charged.

The presumption of innocence is particularly important: a conviction cannot be based on assumptions, and any unresolved doubts must be interpreted in favour of the defendant. The Supreme Court separately emphasises that the court is obliged to examine both incriminating and exculpatory evidence. (Law and Legal Practice)

Regulatory Framework: Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Judicial Judgment”

4. Objective Element of Torture

To apply subparagraph 1) of Part 2 of Article 110, it is first necessary to establish the basic elements of the offence of torture.

The current Part 1 of Article 110 of the Criminal Code provides for the infliction of physical or psychological suffering through violent acts committed:

• with particular cruelty;
• with humiliation;
• for the purpose of causing torment to the victim,

provided that the act does not result in serious or moderate bodily injury. (Law and Legal Practice)

Consequently, proving only that:

“the victim was beaten”

is insufficient for qualification under Part 2.

It is necessary to prove the combination of elements of the basic offence and the additional aggravating element.

5. What Is Meant by Physical Suffering

Physical suffering may be expressed in:

• the systematic infliction of blows;
• causing pain by various means;
• physical воздействие on the victim's body;
• repeated painful воздействия;
• other violent acts causing physical torment.

At the same time, the existence of bodily injuries is not the sole criterion.

The absence of significant injuries does not, in itself, exclude torture.

On the contrary, it is necessary to establish the nature of the воздействие, its intensity, duration, recurrence, the circumstances in which it was committed and the perpetrator's mental attitude.

6. Psychological Suffering

Article 110 covers not only physical suffering but also psychological suffering.

This is particularly important in situations involving dependence.

For example, the perpetrator may systematically:

• humiliate the victim;
• intimidate the victim;
• threaten the victim;
• subject the victim to degrading acts;
• exploit the victim's dependence on housing;
• exploit the victim's financial dependence;
• control access to the means necessary for subsistence;
• restrict the victim's freedom;
• combine threats and violence.

However, each specific act must be assessed in terms of whether it corresponds to the disposition of Article 110.

7. Subjective Element

Torture is an intentional criminal offence.

For qualification, it is necessary to establish that the perpetrator:

1. was aware of the nature of the violent acts being committed;
2. understood that they were causing physical and/or psychological suffering to the victim;
3. desired to cause such suffering;
4. in relation to subparagraph 1) of Part 2, knew that the victim was in a helpless or dependent position.

The last element is of fundamental importance.

The word “knowingly” means that the perpetrator's awareness must be established.

8. Significance of the Word “Knowingly”

The aggravating element must not be established automatically.

For example, if the victim:

• has an illness;
• is elderly;
• has a disability;
• is financially dependent on another person;
• lives with the perpetrator;
• is the perpetrator's spouse;
• is a relative,

this alone is insufficient.

The investigation and the court must establish that the perpetrator knew of the relevant circumstance.

Such knowledge may be inferred from:

• cohabitation;
• family relationships;
• the duration of the relationship;
• documents;
• correspondence;
• medical records;
• witness testimony;
• the perpetrator's conduct;
• confessional statements;
• the nature of the relationship between the parties;
• previous requests for assistance;
• communications to state authorities;
• banking or contractual documents;
• other circumstances.

9. Helpless State

A helpless state is the actual condition of a victim in which their ability to effectively protect themselves against an offence is substantially restricted or absent.

Depending on the circumstances of a particular case, such conditions may include:

• a serious illness;
• physical impairments;
• disability;
• limited mobility;
• loss of consciousness;
• a serious state of health;
• advanced age;
• a state of sleep;
• a condition objectively preventing effective resistance;
• other physiological or factual circumstances.

However, the helpless state must exist during the relevant period in which the crime was committed.

A person cannot automatically be considered helpless merely because they have a medical diagnosis or a disability.

The following question must be answered:

Could the victim, in the specific situation, effectively resist the perpetrator's actions or avoid them?

10. Helplessness and a Sudden Attack Are Different Categories

This is an important distinction.

If the victim was unable to resist solely because the attack was unexpected, this does not automatically mean that a state of helplessness existed.

Helplessness must characterise the victim's own condition, rather than merely the tactical advantage of the perpetrator.

Therefore, when examining the case, it is necessary to establish:

• the victim's condition before the attack;
• the victim's condition at the time of each episode;
• the ability to resist;
• the ability to seek assistance;
• the victim's physical condition;
• the existence of illnesses;
• age;
• psychological condition;
• the nature of the relationship between the parties.

11. Material Dependence

Material dependence is a situation in which the victim's material subsistence is substantially connected to the perpetrator.

It may be expressed, for example, in:

• full maintenance of the victim;
• partial maintenance;
• dependence on funds for medical treatment;
• dependence on housing;
• dependence on monetary funds;
• dependence on payment for education;
• dependence on funds for the maintenance of a child;
• other forms of economic dependence.

However, the mere receipt of money from the perpetrator does not always constitute material dependence.

The degree of dependence must be examined.

12. Other Dependence

The category of “other dependence” is broader than material dependence.

It may have the following basis:

12.1. Family Basis

For example:

• parent — child;
• guardian — ward;
• spouses;
• de facto family relationships.

However, kinship alone does not automatically establish criminal-law qualification.

It is necessary to determine the actual dependence.

12.2. Contractual Basis

For example:

• employer — employee;
• person providing housing — person dependent on them;
• guardian — ward;
• person providing care — person requiring care.

12.3. Official or Organisational Basis

For example:

• manager — subordinate;
• a person exercising actual authority over a dependent employee;
• head of an institution — person under their control.

However, for the purposes of the specific legal qualification, it is necessary to establish the actual relationships rather than merely the formal status.

13. Distinguishing “Other Dependence” from a Domestic Dispute

An ordinary domestic dispute between two persons of equal standing does not automatically become an aggravated offence merely because the parties are married or live together.

For the purposes of subparagraph 1) of Part 2 of Article 110, what matters is precisely the dependent position of the victim.

For example:

A married couple has an argument, and one spouse uses physical force once.

This fact alone does not yet prove torture, much less establish the aggravating element of dependence.

Another example:

The victim is entirely dependent on the perpetrator for housing, financial resources and medical treatment, has no independent income, and the perpetrator is aware of this position and systematically exploits it to cause suffering.

In this situation, the issue of dependence acquires independent criminal-law significance.

14. Relationship Between the Aggravating Element and the Motive of the Crime

For the application of subparagraph 1) of Part 2, it is not necessary that the motive for the crime must be the desire to exploit the victim's dependence.

For example, the reason for the conflict may have been:

• jealousy;
• revenge;
• personal hostility;
• a desire to punish the victim;
• another reason.

However, if the perpetrator knowingly recognised the victim's dependent position, the aggravating element may be relevant regardless of the specific motive.

At the same time, the motive must be established and reflected in the judicial act if it is relevant to the qualification or sentencing.

15. Time of Completion of the Crime

Torture is a crime involving the material element of suffering; however, the actual nature of the violent conduct must be taken into account when assessing it legally.

The crime must be connected with the infliction of physical and/or psychological suffering.

Therefore, it is important for the prosecution to establish:

• what actions were committed;
• when they were committed;
• how many times they were committed;
• by what means they were committed;
• over what period they were committed;
• what consequences they caused;
• why they constitute torture specifically, rather than a single act of violence.

16. Systematic Nature and Repetition of Actions

When analysing torture, the totality of episodes must be examined.

The following are of particular importance:

• the number of episodes;
• the intervals between them;
• whether the methods were identical or similar;
• the duration of the unlawful conduct;
• the sequence of actions;
• the existence of a single intent;
• the victim's reaction;
• the perpetrator's reaction.

At the same time, criminal-law analysis cannot automatically be replaced with the formula:

“repeatedly beat the victim = torture”.

The court is obliged to establish all the elements of the offence under Article 110 in full.

17. Distinguishing the Offence from Article 108-1 of the Criminal Code

If intentional infliction of bodily harm results in minor harm to health, the issue of distinguishing the offence from the relevant provision on the intentional infliction of minor harm to health may arise.

In the case of torture, the key issue is not only the medical outcome but also the nature of the violent conduct and its purpose of causing torment.

Therefore, qualification must not be based solely on the medical report.

18. Distinguishing the Offence from Article 109-1 of the Criminal Code

Battery and torture are not identical concepts.

In the case of battery, the specific violent воздействие is assessed.

In the case of torture, additional elements must be established:

• the infliction of physical or psychological suffering;
• particular cruelty, humiliation or the purpose of causing torment;
• the absence of consequences in the form of serious or moderate bodily injury;
• under Part 2, the presence of the relevant aggravating circumstance.

Therefore, qualification based solely on the number of bruises or the mere fact that blows were inflicted is insufficient.

19. Distinguishing the Offence from the Infliction of Moderate or Serious Bodily Injury

Part 1 of Article 110 expressly excludes situations in which torture has resulted in serious or moderate bodily injury.

Therefore, where such consequences are present, the issue arises of qualification under the articles concerning the infliction of bodily injury or under the rules on the cumulative classification of criminal offences, if the necessary legal grounds exist.

20. Particular Importance of Medical Examination

Medical documentation may be of fundamental importance in cases involving torture.

The following must be examined:

• medical records;
• visits to emergency trauma centres;
• ambulance records;
• photographs of injuries;
• examination results;
• treatment records;
• conclusions of forensic medical examinations;
• information concerning the time when the injuries occurred.

However, a medical examination does not replace the court's legal assessment.

The expert answers questions requiring specialised knowledge, while the court establishes whether the elements of a criminal offence are present.

The Law “On Forensic Expert Activities” requires forensic examinations to be comprehensive, complete, objective and scientifically substantiated. (Law and Legal Practice)

Regulatory Act: Law of the Republic of Kazakhstan “On Forensic Expert Activities”

21. Psychological and Forensic Psychiatric Examination

In cases involving psychological violence or prolonged воздействие, it may be necessary to examine:

• the psychological condition of the victim;
• the existence of psychological trauma;
• the ability to correctly perceive the circumstances;
• the ability to give testimony;
• the nature of the emotional consequences.

However, a psychological examination must not substitute for proof of the event itself.

It is necessary to distinguish between:

1. the fact that the actions were committed;
2. the victim's perception of those actions;
3. the causal relationship;
4. the existence of psychological consequences;
5. legal qualification.

22. Subject-Matter Jurisdiction

Cases under Part 2 of Article 110 of the Criminal Code fall within the jurisdiction of a district or equivalent court acting as a court of first instance, unless they are assigned by law to the jurisdiction of a specialised court.

Article 306 of the Criminal Procedure Code establishes the general rule: district and equivalent courts are courts of first instance and hear criminal cases, except those assigned to specialised courts. (Law and Legal Practice)

Provision: Article 306 of the Criminal Procedure Code of the Republic of Kazakhstan

If the victim is a minor, the case may fall within the jurisdiction of a specialised inter-district court for juvenile cases, depending on the specific offence and procedural circumstances.

23. Territorial Jurisdiction

The main rule is established by Article 314 of the Criminal Procedure Code:

a criminal case is heard by the court at the place where the criminal offence was committed.

If the act was initiated in one location and completed in another, the special rules of Article 314 apply.

Following legislative amendments in 2026, Article 314 has also undergone changes; therefore, when preparing a procedural document, it is necessary to use the current version rather than outdated templates. (Law and Legal Practice)

Provision: Article 314 of the Criminal Procedure Code of the Republic of Kazakhstan — Territorial Jurisdiction

24. Allocation of Jurisdiction Between Authorities

In the classical sense, “allocation of jurisdiction between authorities” is not an issue of civil or administrative proceedings in this context.

The matter concerns criminal jurisdiction:

criminal prosecution authority → prosecutor → criminal court.

If a civil claim for compensation for damage is also brought, it may be considered within the criminal proceedings.

Article 167 of the Criminal Procedure Code expressly provides for the possibility of filing a civil claim in criminal proceedings. (Law and Legal Practice)

25. Private-Public Nature of Prosecution

This is one of the most important procedural aspects.

Part 3 of Article 32 of the Criminal Procedure Code expressly classifies the criminal offence provided for under Part 1 of Article 110 as an offence subject to private-public prosecution.

At the same time, Part 2 of Article 110 is not separately listed in the relevant part of Article 32, because the aggravated offence has a higher degree of public danger and criminal prosecution is conducted under the rules of public prosecution, unless there is a special procedural ground for applying a different regime.

Consequently, when preparing a case, it is necessary to determine the exact legal qualification at the time of registration and final indictment, rather than automatically extending the procedural regime applicable to Part 1 of Article 110 to Part 2.

Article 32 contains a fundamental rule: if an act affects the interests of a person who is in a helpless or dependent state, the prosecutor is entitled to initiate or continue proceedings even in the absence of a complaint from the victim. (Law and Legal Practice)

26. Procedural Specifics of a Helpless Victim

An important relationship between substantive criminal law and criminal procedural law arises here.

Substantive-law aggravating element:

the victim was knowingly in a helpless or dependent state, as known to the perpetrator.

Procedural provision:

if an act affects the interests of a person who is in a helpless or dependent state, the prosecutor may initiate or continue proceedings irrespective of whether the victim has filed a complaint.

These are two different legal constructs.

It is not possible to automatically assert:

“If a person is dependent, this means that proceedings may automatically be initiated without an application”.

The procedural requirements of Article 32 of the Criminal Procedure Code must be applied.

27. Pre-Trial Procedure

There is no mandatory “pre-trial dispute settlement procedure” in the civil-law sense for criminal prosecution.

The following are not required:

• a formal claim to the perpetrator;
• a written demand to stop the violence;
• a prior application to the employer;
• mandatory mediation;
• a prior application to the court.

The issue of criminal prosecution is governed by the Criminal Procedure Code.

Depending on the nature of the report, the rules governing the registration of a statement, the commencement of pre-trial investigation and procedural verification apply.

28. Victim's Statement

The statement should reflect the following circumstances in as much detail as possible:

• who committed the acts;
• when they were committed;
• where they were committed;
• how they were committed;
• the number of episodes;
• what actions were committed;
• what consequences occurred;
• why the victim considers themselves to have been in a helpless or dependent state;
• how the perpetrator knew about this;
• which documents confirm these circumstances;
• who can confirm the circumstances;
• what audio, video and electronic evidence is available.

It is particularly important to describe not only the fact of violence but also the dependence.

For example:

“I was materially dependent on the accused”.

This statement requires clarification:

• who paid for the housing;
• who provided food;
• who paid for medical treatment;
• whether the victim had their own income;
• who controlled the monetary funds;
• whether the victim could independently leave the place of residence;
• whether there were children;
• whether there were other sources of funds.

29. Evidence

The main rule is that the prosecution must be supported by a body of admissible evidence.

Article 122 of the Criminal Procedure Code provides for the collection of evidence through procedural actions and also grants the defence counsel and the victim's representative the opportunity to independently obtain documents and other information in accordance with the procedure established by law. (Law and Legal Practice)

The following are particularly useful:

Documentary Evidence

• medical documents;
• medical extracts;
• certificates;
• bank statements;
• income documents;
• lease agreements;
• documents confirming payment for housing;
• documents confirming payment for medical treatment;
• correspondence;
• messages;
• emails;
• photographs;
• video recordings;
• audio recordings;
• documents issued by guardianship authorities;
• documents issued by social services.

Witnesses

• relatives;
• neighbours;
• colleagues;
• friends;
• medical professionals;
• social workers;
• police officers;
• other persons.

30. Proving Dependence

To prove material dependence, it is advisable to establish:

1. the victim's source of income;
2. the amount of income;
3. the absence of independent income;
4. the amount of maintenance provided by the perpetrator;
5. the existence of dependency;
6. payment for housing;
7. payment for food;
8. payment for medical treatment;
9. financial control;
10. the inability to independently meet basic needs.

In relation to other dependence:

1. the basis on which the dependence arose;
2. the extent of the perpetrator's actual authority;
3. the victim's ability to refuse subordination;
4. the existence of alternatives;
5. the consequences of refusal;
6. the perpetrator's awareness;
7. the duration of the dependence.

 31. Proof of Knowingness

This is one of the most complex issues.

The prosecution must establish that:

the perpetrator was not merely objectively in a relationship with the victim, but also knew about the condition that rendered the victim helpless or dependent.

For example, if the perpetrator is the son of an elderly person who lives separately and has an independent income, the mere fact of kinship does not prove the qualifying element.

However, if the perpetrator:

• lives with the elderly parent;
• provides regular care for them;
• manages their financial resources;
• knows about their serious illness;
• accompanies them to medical treatment;

then the evidence of knowingness is significantly strengthened.

32. Electronic Evidence

In modern cases, the following are of particular importance:

• WhatsApp;
• Telegram;
• SMS;
• email;
• CCTV footage;
• intercom recordings;
• photographs;
• geolocation data;
• recordings of telephone conversations;
• banking applications;
• electronic transfers.

It is necessary to ensure:

• the origin of the file;
• its integrity;
• identification of the participants;
• the date;
• the time;
• the method of obtaining it;
• the absence of editing or tampering;
• its connection to a specific person.

33. Audio and Video Recordings

A video recording may simultaneously establish:

• the fact of the act of influence;
• its duration;
• the nature of the conduct;
• the victim's emotional state;
• the victim's physical condition;
• the relationship between the parties;
• the perpetrator's awareness.

The combination of the following evidence may be particularly compelling:

video recording + medical documentation + witness testimony + correspondence.

34. Inadmissibility of Evidence

Even the existence of objectively persuasive information does not eliminate the requirements concerning procedural admissibility.

The court must examine:

• who obtained the evidence;
• by what method;
• whether procedural requirements were complied with;
• whether the rights of the participants were violated;
• whether coercion was involved;
• whether the evidence is derived from inadmissible evidence.

The Supreme Court expressly states that where evidence is found to have been obtained in violation of the law, the court must provide reasons for excluding it from the body of evidence. (Law and Legal Practice)

35. Testimony of the Victim

The victim's testimony is of significant evidentiary importance.

However, it must not be assessed in isolation.

Particularly in cases involving prolonged violence, it is necessary to examine:

• the consistency of the testimony;
• the time intervals;
• the details of individual episodes;
• consistency with objective evidence;
• the existence of corroborating evidence;
• the reasons for any possible contradictions.

The mere fact that the victim changes their testimony does not automatically mean that it is unreliable.

The court must establish the reasons for the change and compare the testimony with other evidence.

36. Testimony of a Minor Victim

Where the victim is a minor, special safeguards apply.

It is necessary to take into account:

• age;
• psychological condition;
• dependence on adults;
• the possibility of pressure;
• the specific requirements for questioning;
• participation of a legal representative;
• the need for psychological protection.

It is particularly important to prevent the child from being retraumatized through repeated questioning.

37. Deposition of Testimony

In certain cases, it is possible to have the testimony of a victim or witness preserved through deposition before an investigating judge.

This may be particularly relevant in cases involving:

• a serious health condition;
• the existence of security measures;
• the risk that subsequent questioning may become impossible;
• the need to ensure the preservation of evidence.

The practical importance of the deposition procedure increases particularly in cases involving prolonged violence, where the victim may fear the perpetrator.

38. Expert Examinations

Depending on the circumstances, the following expert examinations may be conducted:

Forensic Medical Examination

Establishes:

• the nature of injuries;
• the time when they were sustained;
• the mechanism by which they were inflicted;
• the degree of harm to health.

Psychological Examination

May examine:

• emotional condition;
• psychological consequences;
• the ability to perceive circumstances.

Psychological and Psychiatric Examination

May be required in more complex cases involving the mental condition of a participant.

Comprehensive Expert Examination

The law provides for the possibility of conducting a comprehensive expert examination. (Law and Legal Practice)

39. Civil Claim

The victim has the right to file a civil claim directly within the criminal proceedings.

Article 167 of the Criminal Procedure Code of the Republic of Kazakhstan allows such a claim to be filed from the commencement of pre-trial investigation until the end of the judicial investigation. (Law and Legal Practice)

The claim may include:

• material damage;
• medical treatment expenses;
• expenses for the restoration of health;
• other documented losses;
• moral damage.

40. State Duty

When a civil claim is filed in criminal proceedings, the civil claimant is exempt from paying the state duty.

This is expressly established by Part 3 of Article 167 of the Criminal Procedure Code. (Law and Legal Practice)

In addition, the Tax Code provides for exemption from state duty for claimants bringing claims for compensation of material damage caused by a criminal offence. (ZakonPravo Mail)

Provision: Article 167 of the Criminal Procedure Code of the Republic of Kazakhstan

41. Moral Damage

By its very nature, torture may cause significant moral damage.

It may be expressed in:

• physical pain;
• humiliation;
• fear;
• anxiety;
• a feeling of helplessness;
• depression;
• shame;
• prolonged psychological distress;
• disruption of one's ordinary way of life.

The Supreme Court defines moral damage as mental and physical suffering caused by the violation of personal non-property rights and benefits. (Law and Legal Practice)

Normative Resolution: Normative Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 27 November 2015

42. Limitation Period for Claims for Moral Damage

Under the general rule established by Article 187 of the Civil Code, the statute of limitations does not apply to claims for the protection of intangible benefits and personal non-property rights, unless otherwise provided by law.

Furthermore, claims for compensation for damage caused to life or health also belong to a special category of claims. (Law and Legal Practice)

Consequently, it is necessary to distinguish between:

a) the limitation period for criminal prosecution;

b) the time limit for filing a civil claim in criminal proceedings;

c) the statute of limitations applicable to a separate civil claim.

These are three different legal institutions.

43. Time Limit for Filing a Civil Claim in Criminal Proceedings

The special procedural rule under Article 167 of the Criminal Procedure Code allows a civil claim to be filed:

from the commencement of pre-trial investigation until the end of the judicial investigation.

Consequently, a civil claim does not formally have to be filed simultaneously with the report of a criminal offence.

However, from a practical perspective, delaying the filing of the claim is inadvisable.

The earlier the claims are submitted, the easier it is to ensure:

• collection of documents;
• attachment of property;
• determination of the amount of damage;
• participation of the civil defendant;
• examination of evidence.

44. Reinstatement of Time Limits

In relation to criminal prosecution, it is more accurate to refer not to the "reinstatement of the time limit for filing a claim", but to the application of the rules governing the limitation period for bringing a person to criminal liability.

Article 71 of the Criminal Code establishes:

• 1 year — criminal misdemeanour;
• 2 years — minor crime;
• 5 years — crime of medium gravity;
• 10 years — serious crime;
• 15 years — especially serious crime. (Law and Legal Practice)

Part 2 of Article 110 provides for a penalty of up to seven years of imprisonment and falls within the category of serious crimes.

Consequently, the general limitation period for Part 2 of Article 110 is 10 years, provided that there are no special grounds for suspension, interruption, or exclusion of the application of the limitation period.

45. Exception for Torture

It is very important not to confuse:

• Article 110 of the Criminal Code — torture;
• Article 146 of the Criminal Code — torture.

Article 71 of the Criminal Code provides for the non-application of limitation periods to certain crimes, including torture. (Law and Legal Practice)

Consequently, the rule on the non-application of limitation periods under Article 146 cannot automatically be extended to every case of torture under Article 110.

46. Application of Article 68 of the Criminal Code — Reconciliation

At first glance, the following question may arise:

Can a person accused under Part 2 of Article 110 be released from criminal liability on the grounds of reconciliation?

Particular caution is required here.

Part 4 of Article 68 of the Criminal Code expressly excludes the application of the reconciliation mechanism to a number of crimes, including torture and crimes involving violence against minors, subject to the exceptions established by law. (Law and Legal Practice)

Therefore, before filing a motion to terminate the case on the grounds of reconciliation, it is necessary to establish:

1. the exact version of the Criminal Code provision in force on the date of the act;
2. the exact legal classification;
3. the age of the victim;
4. whether violence against a minor was involved;
5. whether there are other crimes;
6. whether the specific provision of Part 4 of Article 68 is applicable.

47. Reconciliation in Cases Involving an Adult Dependent Victim

If the victim is an adult and the case does not fall within the exceptions under Part 4 of Article 68, the issue of reconciliation must be assessed in accordance with the general rules of Article 68.

However, it must be remembered that:

reconciliation is not the same as the absence of a criminal event.

This is a non-exonerating ground.

The Supreme Court's normative resolution on the application of Article 68 emphasizes the need to establish the full set of required conditions:

• the category of the crime;
• reconciliation;
• redress for the harm caused;
• other circumstances provided for by law. (Law and Legal Practice)

48. Free Expression of the Victim's Will

In cases where the victim is dependent on the accused, the issue of reconciliation acquires increased procedural complexity.

It is necessary to establish that the statement of reconciliation is:

• voluntary;
• conscious;
• not caused by threats;
• not caused by economic pressure;
• not the result of dependency;
• not motivated by fear.

This is particularly important in cases of domestic or economic violence.

If the victim says:

"I reconciled because I have nowhere else to go",

this requires serious procedural assessment.

49. Law on Mediation

In Kazakhstan, mediation is regulated by the Law "On Mediation".

Its fundamental principles are:

• voluntariness;
• equality of the parties;
• independence and impartiality of the mediator;
• inadmissibility of interference;
• confidentiality. (Law and Legal Practice)

Regulatory Act: Law of the Republic of Kazakhstan "On Mediation"

50. Why Dependency Is Particularly Important in Mediation

If the accused is:

• an employer;
• a spouse;
• a parent;
• a guardian;
• a person providing accommodation;
• a person providing medical treatment;

then the victim's formal consent to mediation does not yet mean that there is no pressure.

Therefore, in such cases, it is necessary to assess the actual freedom of the victim's expression of will.

51. Persons Participating in the Proceedings

Depending on the stage of the proceedings and procedural status, the following persons may participate in the case:

On the Prosecution Side

• prosecutor;
• criminal prosecution authority;
• public prosecutor;
• victim;
• victim's representative;
• private prosecutor — where the relevant procedural regime so provides;
• civil claimant.

On the Defence Side

• suspect;
• accused;
• defendant;
• defence counsel;
• legal representative in cases provided for by law;
• civil defendant.

Other Participants

• witnesses;
• expert;
• specialist;
• interpreter;
• teacher;
• psychologist;
• legal representative of a minor.

52. Victim

Article 71 of the Criminal Procedure Code establishes the procedural rights of the victim.

In particular, the victim has the right to:

• give testimony;
• submit evidence;
• file motions;
• use the assistance of a representative;
• review the case materials;
• appeal procedural decisions;
• file a civil claim;
• demand compensation;
• reconcile in cases provided for by law. (Law and Legal Practice)

53. Victim's Representative

Representation may be of particular importance in cases involving dependency.

The representative assists the victim in:

• documenting evidence;
• formulating motions;
• challenging investigative decisions;
• obtaining expert examinations;
• filing a civil claim;
• requesting security measures;
• participating in court hearings.

54. Measures of Procedural Compulsion

Measures of procedural compulsion include, in particular:

• detention;
• preventive measures;
• compulsory appearance;
• temporary suspension;
• other measures provided for by the Criminal Procedure Code.

Detention is regulated by Article 128 of the Criminal Procedure Code and is applied where the grounds prescribed by law exist. (Law and Legal Practice)

55. Preventive Measures

Article 137 of the Criminal Procedure Code provides for:

1. a written undertaking not to leave the place of residence and to maintain proper conduct;
2. personal surety;
3. placing a servicemember under the supervision of the military command;
4. placing a minor under supervision;
5. bail;
6. house arrest;
7. detention in custody. (Law and Legal Practice)

56. Specific Features of Detention in Custody under Article 110

Article 136 of the Criminal Procedure Code expressly provides for a special rule:

A person suspected or accused of committing crimes provided for under Article 110 of the Criminal Code may be remanded in custody on the grounds of the gravity of the offence committed and/or the legal classification of the criminal offence. (Law and Legal Practice)

This is a significant procedural feature.

However, this does not mean that detention in custody is automatic.

When selecting a preventive measure, the grounds provided for by the Criminal Procedure Code and the possibility of applying a less restrictive measure must be assessed.

57. House Arrest and Prohibition on Approaching

In cases involving dependency and domestic violence, the following measures may be of practical importance:

• house arrest;
• prohibition on approaching;
• other restrictions;
• measures to ensure the victim's safety.

Article 97 of the Criminal Procedure Code provides for the possibility of applying security measures, including a prohibition on approaching. (Law and Legal Practice)

58. State Protection of the Victim

Article 96 of the Criminal Procedure Code obliges the authority conducting the criminal proceedings to take security measures where there is information indicating a threat of violence or another act prohibited by criminal law.

An application for security measures must be considered no later than 24 hours after its submission. A refusal may be appealed to the prosecutor or the court. (Law and Legal Practice)

This is particularly important where the victim is dependent on the accused.

59. Law on State Protection

The Law of the Republic of Kazakhstan "On State Protection of Persons Participating in Criminal Proceedings" is also of particular importance.

It establishes a system of state protection measures for the life, health, property and legitimate interests of persons participating in criminal proceedings. (Law and Legal Practice)

The possibility of protection must be assessed not only after a threat has been made, but also preventively, where there is an objectively existing risk of pressure being exerted on the victim.

60. Domestic Violence

If torture is committed within the family and domestic sphere, the provisions of legislation on the prevention of domestic violence also apply.

The law provides for various individual preventive measures and directly links them to security measures for victims in criminal proceedings. (Law and Legal Practice)

Domestic violence, as defined by legislation, includes physical and economic violence.

Economic violence may take the form of intentionally depriving a person of housing, food, clothing, property or funds to which that person is legally entitled. (Law and Legal Practice)

 61. Protective Order

In appropriate cases, a protective order may be applied.

Its period of validity is established by the legislation on the prevention of domestic violence; at the same time, violation of the protective order entails liability предусмотренная by law. (Law and Legal Practice)

In criminal proceedings, such an order may have significance simultaneously as:

• a protective measure;
• documentary confirmation of previous conflicts;
• confirmation that the accused was aware of the circumstances;
• evidence of the risk of further interference.

62. Supreme Court Practice: Article 110 and Torture

The key regulatory resolution is Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated December 28, 2009.

Particular importance is attached to paragraph 16-1, according to which it is necessary to distinguish between acts under Article 146 of the Criminal Code and subparagraph 4) of part 2 of Article 110 in the version to which the relevant clarification applies.

If all the elements of torture under the special provision of Article 146 of the Criminal Code are established, the act is covered by this provision, and additional qualification under the relevant aggravating element of Article 110 is not required. (Law and Legal Practice)

This is fundamentally important for legal qualification.

Regulatory Resolution: Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated December 28, 2009

63. International Law and Article 110

The following are of significant importance in cases involving torture:

• the UN Convention against Torture;
• the International Covenant on Civil and Political Rights;
• the Convention on the Rights of the Child;
• the Optional Protocol to the Convention against Torture;
• other international treaties ratified by Kazakhstan.

Kazakhstan acceded to the UN Convention against Torture. It establishes the obligation of the State to take effective measures to prevent torture and to ensure a prompt and impartial investigation where there are reasonable grounds to believe that torture has been committed. (Law and Legal Practice)

Text of the Convention: Convention against Torture

64. Optional Protocol to the Convention against Torture

Kazakhstan ratified the Optional Protocol to the Convention against Torture.

It provides for an international and national preventive mechanism for visits to places of detention in order to prevent torture and other cruel, inhuman or degrading treatment. (Law and Legal Practice)

Regulatory Act: Law of the Republic of Kazakhstan on Ratification of the Optional Protocol

65. Distinction Between Ill-Treatment and Torture

Not every instance of ill-treatment constitutes torture within the meaning of Article 146 of the Criminal Code.

Recognition of an act as torture requires the establishment of specific elements, including a special subject and a special purpose provided for by criminal law.

Therefore:

cruel treatment ≠ automatically torture.

And conversely:

where all the elements of torture are present, there is no need to artificially duplicate the qualification under Article 110.

This follows directly from the position of the Supreme Court. (Law and Legal Practice)

66. First-Instance Court Practice: Case in Aktobe

An illustrative example of the application of subparagraph 1) of part 2 of Article 110 is a case considered by Court No. 2 of the city of Aktobe.

The court considered a case against an employee of a social service center who systematically inflicted beatings on minors who were in a helpless condition.

The evidence included, in particular:

• the defendant's admission;
• video recording;
• other materials.

The court imposed a sentence of four years of restriction of liberty. On August 31, 2022, the appellate instance upheld the judgment without changes. (ZANMEDIA)

This example is important primarily because it demonstrates the significance of:

objective video recording + testimony + establishing the condition of the victims.

67. Judicial Practice in the Case of Systematic Violence against a Child in Karaganda

In 2020, the Oktyabrsky District Court of the city of Karaganda considered a case under subparagraph 1) of part 2 of Article 110 of the Criminal Code.

According to the published court materials, the defendant systematically inflicted beatings on a minor, causing physical and psychological suffering.

The body of evidence included:

• testimony of the minor;
• testimony of the legal representative;
• expert opinions;
• witness testimony;
• other materials.

A comprehensive forensic psychological and psychiatric examination of the child was also conducted. (Tengrinews)

This example is particularly interesting for legal practice because it demonstrates the need to prove not only the fact of violence but also the victim's ability to perceive the circumstances and give testimony.

68. Appellate Practice

The appellate instance examines:

• the correctness of the legal qualification;
• the completeness of the examination of evidence;
• compliance with the right to defense;
• the legality of the judgment;
• the substantiation of the conclusions;
• the punishment;
• the resolution of the civil claim.

The Regulatory Resolution of the Supreme Court on the judicial judgment requires the court to provide a reasoned analysis of the evidence and prohibits basing conclusions on assumptions. (Law and Legal Practice)

69. Supreme Court Judicial Practice

When searching for Supreme Court practice specifically concerning the combination of:

“Article 110, part 2, subparagraph 1) + helpless condition/material dependence”

the selection should not be artificially expanded by including cases involving other criminal offences.

For legal practice, it is necessary to distinguish between:

1. Direct practice under Article 110.

2. Practice concerning analogous qualifying elements.

3. Practice concerning evidence.

4. Practice concerning the protection of the victim.

5. Practice under Article 68.

6. Practice concerning the admissibility of evidence.

The Supreme Court has formulated universal rules of evidence that also apply to Article 110.

70. The Supreme Court's Main Standard for Evidence

A conviction must be based on a sufficient body of reliable and credible evidence.

The court is required to:

• examine the parties' versions of events;
• resolve contradictions;
• assess each material piece of evidence;
• examine exculpatory evidence;
• provide reasons for rejecting evidence;
• not base a conviction solely on an admission of guilt.

This is particularly important in cases involving ill-treatment, since the victim and the accused are often the only direct witnesses. (Law and Legal Practice)

71. Significance of the Accused's Admission

An admission of guilt, by itself, is not a sufficient basis for a conviction.

The Supreme Court specifically clarifies that an admission must be corroborated by a body of other evidence. (Law and Legal Practice Mail)

Therefore, the formula:

“the defendant admitted guilt — therefore the accusation has been proven”

does not comply with the requirements of criminal procedure.

72. Practical Significance of Contradictions

In cases involving ill-treatment, the court must examine:

• contradictions between initial and subsequent testimony;
• differences in dates;
• differences in the number of episodes;
• differences in the descriptions of the methods of violence;
• discrepancies with medical records;
• discrepancies with video recordings;
• discrepancies between the testimony of different witnesses.

However, the existence of a contradiction does not, by itself, mean that the entire item of evidence is unreliable.

It is necessary to determine whether the contradiction is material.

73. Situation Where the Victim Refuses to Give Testimony

The victim's refusal to maintain previously given testimony requires clarification of the reasons.

In a situation involving dependency, it is additionally necessary to examine:

• pressure;
• threats;
• financial dependency;
• reconciliation;
• change of place of residence;
• restoration of relations;
• influence of relatives;
• psychological pressure.

If there are signs of pressure, safety measures must be considered.

74. Safety Measures as an Evidentiary Circumstance

The application of safety measures does not, in itself, prove guilt.

However, the relevant resolution may confirm that the criminal proceedings authorities had objective information indicating the existence of a threat.

Therefore:

a safety measure ≠ evidence of guilt;

but:

the circumstances that served as grounds for its application may have evidentiary significance, subject to compliance with the requirements of the Criminal Procedure Code.

75. Jurisdiction and Civil Claim

A civil claim in criminal proceedings is considered by the same court.

Article 167 of the Criminal Procedure Code expressly establishes that the jurisdiction of a civil claim is determined by the jurisdiction of the criminal case.

Therefore, where a claim is filed within the framework of criminal proceedings, the victim does not need to simultaneously seek a separate civil court to consider the related claim. (Law and Legal Practice)

76. Court Decision on a Civil Claim

According to Article 170 of the Criminal Procedure Code, the court may:

1. grant the claim in full;
2. grant the claim in part;
3. dismiss the claim;
4. recognize the right to satisfaction of the claim and refer the issue of the amount to civil proceedings. (Law and Legal Practice)

Provision: Article 170 of the Criminal Procedure Code of the Republic of Kazakhstan

77. State Duty on a Civil Claim

When filing a civil claim in criminal proceedings, the claimant is exempt from paying the state duty.

However, if the claim is granted, the court may decide to recover the relevant state duty from the defendant in favor of the state in cases provided for by procedural legislation.

This is expressly highlighted in the Regulatory Resolution of the Supreme Court “On the Judicial Judgment.” (Law and Legal Practice)

78. Reimbursement of Legal Representative Expenses

The victim has the right to raise the issue of reimbursement of expenses associated with the protection of their rights.

At the same time, the following must be documented:

• the agreement;
• payment documents;
• the scope of legal assistance provided;
• the reasonableness of the expenses.

The issue is resolved taking into account the requirements of the Criminal Procedure Code concerning procedural expenses.

79. Approach to Evidence in the Interests of the Victim

For the victim's lawyer, it is advisable to build an evidentiary model consisting of four blocks:

Block 1. Fact of Violence

• video recordings;
• photographs;
• medical documents;
• witnesses;
• messages;
• call recordings.

Block 2. Systematic Nature/Character of Conduct

• previous episodes;
• correspondence;
• complaints;
• police calls;
• witnesses;
• medical history.

Block 3. Dependency

• money;
• housing;
• treatment;
• maintenance;
• documents;
• family relations;
• employment relations.

Block 4. Knowledge

• documents known to the perpetrator;
• cohabitation;
• correspondence;
• previous complaints;
• actions of the perpetrator himself/herself.

80. Position of the Defense

The defense must separately analyze each element of the offence.

In particular:

Regarding the objective elements:

• whether violence actually occurred;
• whether it was systematic;
• whether it caused suffering;
• whether particular cruelty was present;
• whether there was an intention to inflict torment.

Regarding the subjective elements:

• whether the accused understood the nature of their actions;
• whether they intended to cause suffering;
• whether they knew about the victim's helpless condition;
• whether they knew about the victim's dependency.

Regarding the qualifying element:

• whether dependency existed;
• whether it was material;
• whether it was of another nature;
• whether a helpless condition existed;
• whether it was known to the accused.

81. Typical Error of the Prosecution

One of the most significant errors is:

“The victim is the spouse of the accused; therefore, she is in a state of other dependency.”

Such a conclusion requires proof.

Marriage is a legal relationship, but it does not automatically establish criminal-law dependency in every specific case.

Actual dependency must be established.

82. Second Typical Error

Another error is:

“The victim has a disability; therefore, the victim is in a helpless condition.”

The mere existence of a disability is not universal proof of a helpless condition.

It is necessary to establish:

• the nature of the disability;
• functional limitations;
• the ability to resist;
• the ability to seek assistance;
• the ability to move independently;
• the ability to understand what is happening.

83. Third Typical Error

Ill-treatment cannot be substituted by an isolated fact of causing pain.

For example:

one blow during a conflict.

Such a single episode, by itself, does not yet indicate the existence of an offence under Article 110.

The investigation is required to prove specifically the elements of ill-treatment.

84. Fourth Typical Error

Dependency cannot automatically be considered established solely because of material inequality.

For example:

one person earns 1 million tenge, while another earns 200,000 tenge.

This alone does not yet constitute material dependency.

It is necessary to establish the actual economic relationship and its significance for the victim's subsistence.

85. Fifth Typical Error

Not every action taken by an employer in relation to an employee can automatically be qualified under subparagraph 1) of part 2 of Article 110 of the Criminal Code.

It is necessary to establish:

• actual dependency;
• exploitation of that dependency;
• the nature of the violence;
• awareness;
• the elements of ill-treatment.

86. Court Judgment

In the judgment, the court must clearly describe:

• the time;
• the place;
• the method;
• the nature of the actions;
• the consequences;
• the form of guilt;
• the motive;
• the evidence;
• the defendant's position;
• the qualifying element.

The Supreme Court separately indicates that the judgment must contain a reasoned decision regarding the evidence and comply with the requirements of procedural law. (Law and Legal Practice)

87. Substantiation of the Specific Qualifying Element

If the court finds that subparagraph 1) of part 2 of Article 110 of the Criminal Code has been proven, the reasoning section must establish:

Regarding the helpless condition:

1. what condition the victim was in;
2. why that condition constituted a helpless condition;
3. when that condition existed;
4. how the accused knew about it.

Regarding material dependency:

1. what constituted the material dependency;
2. how significant it was;
3. what relationships gave rise to it;
4. whether the accused knew about it.

Regarding other dependency:

1. what the dependency consisted of;
2. on what grounds it arose;
3. to what extent it restricted the victim's independence;
4. whether the accused knew about it.

88. Appellate Appeal

In an appeal concerning cases of this category, the following issues may be raised:

• incorrect legal qualification;
• failure to prove the helpless condition;
• failure to prove dependency;
• absence of evidence of “actual knowledge”;
• inadmissibility of certain evidence;
• incompleteness of the court investigation;
• contradictions in testimony;
• incorrect assessment of expert evidence;
• excessive or improperly imposed punishment;
• resolution of the civil claim.

89. What Is Particularly Important for the Defense's Appeal

If subparagraph 1) of part 2 of Article 110 is being challenged, it is not sufficient to write:

“dependency has not been proven.”

It is necessary to formulate:

1. what specific circumstance the court recognized as dependency;
2. by what evidence it was confirmed;
3. why that evidence does not establish dependency;
4. where the evidence of the accused's awareness is missing;
5. what evidence presented by the defense the court failed to examine;
6. what contradictions the court failed to resolve;
7. why the court's conclusion does not follow from the body of evidence.

90. What Is Particularly Important for the Victim's Appeal

If the qualifying element was not established, it is necessary to demonstrate:

• medical documents;
• financial documents;
• correspondence;
• witness testimony;
• information about cohabitation;
• information about maintenance;
• information about control over financial resources;
• guardianship documents;
• information about the state of health.

 91. Practical Table for Legal Qualification

92. Main Regulatory Legal Acts

For practical work on the case, the following body of legislation must be used.

92.1. Constitution of the Republic of Kazakhstan

Main provisions:

• human dignity;
• rights and freedoms;
• judicial protection;
• presumption of innocence;
• the right to legal assistance;
• prohibition of torture.

92.2. Criminal Code of the Republic of Kazakhstan

Key provisions:

• Article 3 — basic concepts;
• Article 10 — categories of criminal offences;
• Article 14 — recidivism;
• Article 52 and subsequent articles — sentencing;
• Article 68 — reconciliation;
• Article 71 — limitation periods;
• Article 110 — torture;
• Article 146 — torture;
• provisions concerning bodily harm;
• provisions concerning battery;
• provisions concerning violence against minors.

92.3. Criminal Procedure Code

Key provisions:

• Article 19 — presumption of innocence;
• Article 23 — adversarial proceedings and equality of the parties;
• Article 32 — private, private-public and public prosecution;
• Article 35 — grounds for termination;
• Article 71 — victim;
• Article 72 — private prosecutor;
• articles concerning representatives;
• Article 96 — security;
• Article 97 — security measures;
• Article 122 — collection of evidence;
• Article 128 — detention;
• Articles 136–147 — preventive measures;
• Article 167 — civil claim;
• Article 170 — decision on a civil claim;
• Article 306 — jurisdiction;
• Article 314 — territorial jurisdiction;
• articles concerning court proceedings;
• provisions on appellate proceedings.

93. Subordinate Regulatory Legal Acts

The following may be applied during the investigation and consideration of the case:

• regulatory resolutions of the Supreme Court;
• regulatory orders of the Prosecutor General;
• acts of the Ministry of Internal Affairs;
• acts of the Ministry of Justice;
• rules governing forensic expert activities;
• rules governing state protection;
• departmental rules for the registration and recording of reports;
• acts in the field of prevention of domestic violence;
• other regulatory acts adopted for the implementation of the Criminal Code and the Criminal Procedure Code.

However, a subordinate regulatory act may not alter the substance of criminal law or establish criminal liability not provided for by the Criminal Code.

94. Law “On Legal Acts”

When determining the legal force of a subordinate regulatory act, it is necessary to proceed from the hierarchy of regulatory legal acts.

The following have precedence:

1. The Constitution;
2. Constitutional laws;
3. Codes and laws;
4. Other regulatory legal acts in the established hierarchy.

Consequently, a departmental order may not expand the elements of Article 110 of the Criminal Code.

95. Legislation on Forensic Expert Activities

The Law “On Forensic Expert Activities” is of particular importance.

An expert examination must be:

• comprehensive;
• complete;
• objective;
• scientifically substantiated.

This is particularly important when challenging a medical expert opinion. (Law and Legal Practice)

96. Law on State Protection

It is used to protect:

• the victim;
• witnesses;
• family members;
• close relatives;
• other participants in criminal proceedings.

Where a threat to the victim exists, protection may be provided in parallel with criminal prosecution. (Law and Legal Practice)

97. Law on the Prevention of Domestic Violence

It applies where the relationship is of a family and domestic nature.

It is relevant to:

• protection orders;
• preventive registration;
• individual preventive measures;
• protection of the victim;
• cooperation between the police and other government authorities. (Law and Legal Practice)

98. Law on Mediation

It applies to the extent of the admissibility and procedure of mediation where criminal law permits the termination of criminal prosecution on the grounds of reconciliation.

The fundamental principle is voluntariness.

In cases involving dependency, the voluntariness of the agreement must be examined with particular care. (Law and Legal Practice)

99. International Legal Provisions

The following may be used in formulating a legal position:

United Nations Convention against Torture

In particular:

• Article 1 — definition of torture;
• Article 2 — obligation to prevent torture;
• Article 12 — investigation;
• Article 13 — right to lodge a complaint;
• Article 14 — compensation;
• Article 16 — prevention of cruel treatment.

International Covenant on Civil and Political Rights

In particular:

• Article 7 — prohibition of torture and cruel treatment;
• Article 9 — liberty and security of person;
• Article 14 — fair trial.

Convention on the Rights of the Child

It is particularly relevant where the victim is a child.

Optional Protocol to the Convention against Torture

It is relevant to the preventive protection of persons held in places of detention.

100. Practical Algorithm for the Victim's Lawyer

Stage 1. Recording the Incident

Obtain:

• the complaint;
• photographs;
• video recordings;
• medical documents;
• correspondence;
• call recordings;
• witnesses' contact details.

Stage 2. Establishing Dependency

Collect:

• bank documents;
• income information;
• contracts;
• housing documents;
• guardianship documents;
• medical documents;
• evidence of financial support.

Stage 3. Proving Knowing Awareness

Demonstrate:

• that the accused knew about the victim's condition;
• how the accused became aware of it;
• how long the accused had known;
• which actions confirm such knowledge.

Stage 4. Expert Examinations

Raise questions concerning:

• the nature of the injuries;
• the mechanism of their infliction;
• the time when they were sustained;
• psychological consequences.

Stage 5. Security

Where threats exist:

• Article 96 of the Criminal Procedure Code;
• Article 97 of the Criminal Procedure Code;
• prohibition on approaching the victim;
• state protection;
• protection order.

Stage 6. Civil Claim

Claim:

• material damage;
• medical expenses;
• moral damage.

Stage 7. Court Proceedings

Seek to have each element of the offence established separately.

101. Practical Defence Algorithm

The defence must examine:

1. The Incident

Did the violence actually occur?

2. Nature

Does it constitute torture?

3. Consequences

Was moderate or grievous bodily harm inflicted?

4. Intent

Was there an intention to cause suffering?

5. Helplessness

Was the victim actually in a helpless condition?

6. Dependency

Did dependency actually exist?

7. Knowing Awareness

Did the accused know about it?

8. Evidence

Was it obtained lawfully?

9. Causation

Is the causal link between the actions and the consequences established?

10. Procedure

Were the rights of the defence respected?

102. Standard List of Questions for Witnesses

1. How long has the witness known the victim?
2. What is the relationship between the victim and the accused?
3. Where did they live?
4. Who provided for the victim?
5. Did the victim have an independent source of income?
6. Who paid for the accommodation?
7. Who paid for the medical treatment?
8. What was the victim's state of health?
9. Did the accused know about the victim's state of health?
10. What specific episodes of violence are known to the witness?
11. When did they occur?
12. What exactly did the accused do?
13. What consequences did the witness observe?
14. Did the victim seek medical assistance?
15. Did the victim report the violence?
16. Were there any threats?
17. Could the victim freely leave the place of residence?
18. Did the victim have access to money?
19. Who controlled the documents?
20. Who controlled the telephone?
21. Were there any reports to the police?

103. Standard List of Questions for Establishing Financial Dependency

The following questions are of particular importance:

• what funds the victim lived on;
• who provided those funds;
• whether the victim could refuse financial support;
• whether the victim had an independent source of income;
• whether the victim had their own housing;
• whether the victim had a bank account;
• whether the victim had access to their own money;
• whether the victim could independently pay for medical treatment;
• whether the victim's children were dependent on the accused;
• whether there was a real alternative to the financial support provided.

104. Standard List of Questions for Establishing a Helpless Condition

It is necessary to establish:

• age;
• illness;
• physical condition;
• ability to move;
• ability to speak;
• ability to understand what was happening;
• ability to resist;
• ability to seek assistance;
• whether the person was conscious;
• degree of intoxication;
• presence of medication;
• need for constant care.

105. Main Legal Test under Subparagraph 1) of Part 2 of Article 110

For a conviction to be rendered, the following chain of circumstances must be proven:

violent acts

↓

physical or mental suffering

↓

exceptional cruelty / humiliation / intention to cause suffering

↓

absence of grievous or moderate bodily harm within the legal framework of Article 110

↓

the victim's helpless condition or financial/other dependency

↓

the accused's knowledge of this condition

↓

intentional commission of the act

↓

an admissible and sufficient body of evidence.

If one of the essential elements is not proven, the possibility of applying the relevant legal qualification becomes questionable.

106. The Main Practical Problem under Part 2 of Article 110

The most disputed element is often not the fact of violence itself, but specifically:

“known to the offender” (knowingly).

It is not sufficient for the prosecutor to prove:

“The victim was in fact dependent.”

It is necessary to prove:

“The accused knew that the victim was dependent.”

It is precisely this transition from an objective condition to subjective awareness that must be reflected in the evidence.

107. Relationship with the Principle of Presumption of Innocence

If objective dependency is established, but the accused's knowledge of it is not proven, the doubt relates to the subjective element of the qualifying circumstance.

A judgment of conviction may not be based on the assumption:

“He should have known.”

The more legally accurate question is:

“Is there a sufficient body of evidence confirming that the accused was actually aware of the victim's condition?”

This approach is consistent with the Supreme Court's general requirements for a judgment of conviction. (Law and Legal Practice)

108. Practical Example No. 1 — Financial Dependency

The victim has no income, has no housing, and is fully financially supported by the accused.

The accused:

• pays for the accommodation;
• provides money;
• pays for medical treatment;
• controls the bank card;
• knows that the victim is unable to provide for themselves independently.

At the same time, the accused systematically commits acts of violence with the intention of causing suffering.

In such a situation, the prosecution must prove not only the violence itself, but also:

a) actual financial dependency;

b) the accused's knowledge of such dependency;

c) the elements of torture.

109. Practical Example No. 2 — Disability

The victim has a disability, but:

• works;
• lives independently;
• moves independently;
• has an income;
• independently seeks medical assistance.

During a conflict, the accused uses violence.

The mere fact of disability does not automatically establish a helpless condition.

An individual assessment of the victim's actual condition is necessary.

110. Practical Example No. 3 — Serious Illness

The victim is in a serious condition, has difficulty moving and requires constant care.

The accused provides daily care and is aware of the victim's condition.

At the same time, the accused systematically inflicts physical suffering on the victim.

In this case, the elements of helplessness and knowing awareness may be confirmed by the following body of evidence:

• medical documents;
• witness testimony;
• correspondence;
• cohabitation;
• evidence of actual caregiving.

 111. Practical Example No. 4 — Guardian

The guardian exercises constant control over the person under guardianship.

The person under guardianship depends on the guardian in relation to:

• housing;
• food;
• medical treatment;
• access to financial resources;
• freedom of movement.

In cases of systematic violence, the following circumstances must be examined simultaneously:

• the nature of the dependency;
• the scope of the guardian's authority;
• the helpless condition;
• awareness;
• the nature of the violence.

112. Practical Example No. 5 — Employer

An employer systematically commits acts of violence against an employee.

The mere existence of an employment relationship does not determine the issue of legal classification.

It is necessary to establish:

• the extent to which the employee was actually dependent;
• whether the employee could freely leave;
• whether the employee was financially dependent on the employer;
• whether there were threats of dismissal;
• whether the employer exercised control over the employee's housing;
• whether any other form of actual dependency existed.

113. Practical Example No. 6 — Domestic Violence

A spouse systematically causes physical and psychological suffering to his wife.

The wife:

• does not work;
• has no housing;
• has no money of her own;
• is entirely dependent on her husband;
• has minor children;
• the accused is aware of all these circumstances.

In such a case, financial dependency may be the subject of specific proof.

114. Practical Example No. 7 — Dependency Not Proven

The spouses have:

• separate bank accounts;
• their own income;
• equal access to housing;
• independent financial support.

Following a conflict, one spouse accuses the other of torture.

For the qualifying element of dependency to apply, an additional circumstance must be proven, rather than relying solely on the fact of marriage.

115. Practical Example No. 8 — Voluntary Reconciliation Under Pressure

After criminal proceedings have been initiated, the victim submits an application stating:

"I have no claims and request that the case be terminated."

However, it subsequently emerges that:

• the victim lives with the accused;
• the victim is entirely dependent on the accused;
• the accused threatened to evict the victim;
• the victim has no income.

In such circumstances, the voluntariness of the reconciliation requires special scrutiny.

116. The Role of the Court

The court must not limit itself to formally listing the evidence.

It must establish:

• which evidence confirms the violence;
• which evidence confirms the suffering;
• which evidence confirms the dependency;
• which evidence confirms the helpless condition;
• which evidence confirms the accused's prior knowledge;
• which evidence confirms intent.

The Supreme Court expressly requires an analysis of evidence rather than merely listing it. (Zakon i Pravo)

117. What the Reasoning Part of the Judgment Must Contain

A proper reasoning section may logically be structured as follows:

1. the court established the specific acts;
2. the court established their repetition/nature;
3. the court established physical/psychological suffering;
4. the court established particular cruelty, humiliation, or the purpose of causing torment;
5. the court established the helpless condition or dependency;
6. the court established the accused's knowledge of this circumstance;
7. the court identified the evidence supporting each circumstance;
8. the court rejected the alternative version presented by the defence;
9. the court provided the legal classification;
10. the court resolved the issues of punishment and the civil claim.

118. Summary Regarding Jurisdiction and Procedure

119. Key Regulatory Sources on zakonpravo.kz

1. Article 110 of the Criminal Code of the Republic of Kazakhstan — "Torture"
2. Article 32 of the CPC of the Republic of Kazakhstan — Types of Criminal Prosecution
3. Article 306 of the CPC of the Republic of Kazakhstan — Criminal Cases within the Jurisdiction of District and Equivalent Courts
4. Article 314 of the CPC of the Republic of Kazakhstan — Territorial Jurisdiction of Criminal Cases
5. Article 35 of the CPC of the Republic of Kazakhstan — Circumstances Excluding Proceedings in a Case
6. Article 71 of the CPC of the Republic of Kazakhstan — Victim
7. Article 122 of the CPC of the Republic of Kazakhstan — Collection of Evidence
8. Article 136 of the CPC of the Republic of Kazakhstan — Grounds for Applying Preventive Measures
9. Article 137 of the CPC of the Republic of Kazakhstan — Preventive Measures
10. Article 147 of the CPC of the Republic of Kazakhstan — Detention in Custody
11. Article 96 of the CPC of the Republic of Kazakhstan — Obligation to Take Security Measures for Victims, Witnesses, Suspects, Accused Persons and Other Persons Participating in Criminal Proceedings
12. Article 97 of the CPC of the Republic of Kazakhstan — Security Measures
13. Article 167 of the CPC of the Republic of Kazakhstan — Filing a Civil Claim
14. Article 170 of the CPC of the Republic of Kazakhstan — Decisions on Civil Claims
15. Article 68 of the Criminal Code of the Republic of Kazakhstan — Exemption from Criminal Liability in Connection with Reconciliation
16. Article 71 of the Criminal Code of the Republic of Kazakhstan — Exemption from Criminal Liability Due to the Expiration of the Limitation Period
17. Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 28 December 2009 — Torture, Violence and Human Dignity
18. Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated 20 April 2018 — On the Judicial Judgment
19. Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 27 November 2015 — On the Application by Courts of Legislation on Compensation for Moral Damage
20. Law of the Republic of Kazakhstan "On Forensic Expert Activities"
21. Law of the Republic of Kazakhstan "On State Protection of Persons Participating in Criminal Proceedings"
22. Law of the Republic of Kazakhstan "On Mediation"
23. Law of the Republic of Kazakhstan "On the Prevention of Domestic Violence"

120. Final Legal Position

Paragraph 1) of Part 2 of Article 110 of the Criminal Code of the Republic of Kazakhstan should be considered a qualified form of torture in which the legislator imposes enhanced criminal liability due to the particular vulnerability of the victim.

For the purposes of legal classification, it is necessary to prove not merely the existence of violence, but the entire set of circumstances:

1. the existence of acts constituting torture;

2. physical or psychological suffering;

3. particular cruelty, humiliation, or the purpose of causing torment;

4. the absence of circumstances excluding classification under Article 110;

5. the victim's helpless condition or financial/other dependency;

6. the perpetrator's prior knowledge of this circumstance;

7. direct intent;

8. the admissibility and sufficiency of the evidence.

Of particular importance is the distinction between:

"the victim was objectively in a dependent position"

and

"the perpetrator was knowingly aware that the victim was in such a dependent position".

It is precisely the second element that must be proven in relation to the subjective element of the qualifying circumstance.

From a procedural perspective, Part 2 of Article 110 of the Criminal Code also requires the correct determination of the criminal prosecution regime, jurisdiction, the necessity of state protection for the victim, the admissibility of preventive measures, and the possibility of filing a civil claim.

For the victim, the key areas of evidence include documenting the violence itself, medical evidence, proving dependency, proving the perpetrator's awareness, and ensuring safety.

For the defence, the key areas include challenging the elements of torture, the absence of proof of dependency or a helpless condition, the absence of proof of "prior knowledge", verification of the admissibility of evidence, and eliminating contradictions between the evidence.

At the same time, judicial practice demonstrates that, in torture cases, courts assess evidence in its entirety — statements of the victim and witnesses, video recordings, expert examinations, medical records, and other objective materials. A representative example is the case considered by Court No. 2 of the City of Aktobe, in which the charges under subparagraphs 1) and 2) of Part 2 of Article 110 were supported, among other things, by video recordings, testimony, and the defendant's admission, while the appellate court upheld the judgment without amendment. (ZANMEDIA)

For the legal classification of a specific case, the decisive factor is not the mere existence of dependency as a domestic or social fact, but the proven legally significant connection between the victim's dependent position, the perpetrator's awareness of that position, and the commission of the act of torture itself.

Attention!

The Zakon i Pravo Law Office draws your attention to the fact that this document is of a general reference nature and does not always meet the requirements of a particular situation. Our attorneys are ready to provide you with legal advice and assist in preparing any legal document suitable for your specific circumstances.

For further information, please contact an Attorney / Lawyer by telephone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.

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